CRB Reform: One Step Closer

December 1, 2013

By: Isabel Carson

The Citizens Review Board (CRB) project started with a public records request over 3 years ago, developed into a nationwide study, and returned to local and state-wide legislative advocacy.   After Reviewing CRB documents, talking to former complainants who had been through the process, and reaching out to Board members—it became apparent to the Clinic that there was a flaw in the system.  The flaw was not solely evidenced by a 0-79 track record for the CRB, but by the perceptions of both complainants and Board members, and the utter lack of accessibility or transparency for the process.

When the Observer published its first story on the CRB in February 2013, the project picked up momentum. As the Clinic continued to move forward, it was met with unrelenting and invaluable community activism.  CRB Reform Now, a coalition formed after a single conversation between the Clinic and a local public servant, moved to the forefront in amplifying and solidifying the community’s voice—putting pressure on City Council to be accountable in its actions and garnering the attention of the media throughout the process.  While the Clinic and the Coalition took different approaches within the political atmosphere and throughout the stakeholder process, both had one goal—to serve the citizens of this community through meaningful and articulated reform.

On Monday, November 25, the voices of City Council members unanimously rang out in favor of reforming the Citizens Review Board.  This vote marked a huge success for the community coalitions, the Clinic, and the greater Charlotte community.  After ten long months of media coverage, community activism, research, and revised proposals, the City has taken a step in the direction of meaningful reform.

The adopted changes include:

  • Extending the time for a complainant to file an appeal to 30 days
  • Providing the CRB with the entire Internal Investigations file rather than a summary of the investigation prepared by the Police Chief
  • Changing the threshold burden the complainant must meet before the CRB will conduct a full fact-finding hearing to “substantial evidence of error regarding the disposition of the disciplinary charges entered by the chief of police”
  • Changing the standard at the full fact-finding hearing to “whether, by the greater weight of the evidence, the Chief of Police clearly erred”
  • Providing “cultural awareness training” for the CRB members and enhancing the visibility of the complaint and hearing process of the CRB

While these changes are a direct reflection of some of the thoroughly researched and supported recommendations from community stakeholders, change does not stop here.  As the Clinic prepares to take this project state-wide, we recognize those areas where the ordinance still remains deficient.

First, there is no opportunity for the CRB during the appeals process to subpoena and question or cross examine the police officer who is the subject of the complaint.  Because the Council-Manager Relations Committee and Task Force have framed this review process as a continuation of the Police Department’s internal administrative processes, the only parties to the appeal proceedings are the police department and the complainant.  Without subpoena power, the CRB does not have the ability to evaluate the credibility of the subject officer or to verify statements made about the subject officer.  Any and all evidence about the underlying conduct (which is the main subject of the Police Chief’s discretionary decision) is simply hearsay.  While the citizen complainant is explicitly subject to cross-examination, he/she is not afforded that same right against the subject officer.  This could easily become a game of he said – she said.

Second, the language used for the new standards of review does not clearly define what is required of the complainant.  The “substantial evidence” standard seems out of place in the initial hearing phase of the appeals process.   Under the new ordinance, the only reason the CRB chooses to conduct a full evidentiary is if it determines that further fact-finding is necessary.  This leads one to question: how can a complainant meet a substantial evidence standard if the CRB thinks there is insufficient evidence to come to a final disposition? Both the initial standard of review and the final hearing standard of review (“greater weight of the evidence”) focus on whether there was an error in the Police Chief’s decision.  What access does the complainant have to the internal processes of Internal Investigations and the Police Force?  What evidence can the complainant offer other than his/her direct conflict with the subject officer (the conduct complained of)?  Again, without the opportunity to cross-examine the subject officer or independently investigate the actual conduct complained of, the standard of review and lack of independent investigatory/subpoena power leave the CRB appeals process as a one-sided arena.

Third, while the new ordinance touts encouragement of creating visibility within the CRB appeals process, it does not lay out any explicit guidelines to ensure public participation/awareness or transparency.  Many municipalities with civilian oversight boards maintain independent websites, list the names of the board members, provide contact information for a board representative, and publish yearly reports of the Boards’ activities, findings, and dispositions.  These annual reports are done without exposing private personnel information—but rather by offering a big picture perspective of the Board’s effectiveness.   Our city website provides a brief and uninformative description of the general duties of the CRB.  As a product of the stakeholder process, the City has provided more information about the complaint and appeals process, but these are found on an entirely separate webpage. In order to promote visibility and accessibility, all information pertaining to the appeals process and CRB activities should be located on the same webpage.  Board members’ names should be listed.  Statistics and annual findings should be published rather than filed away by the City Clerk.

The Clinic recognizes the strides this City’s representatives have taken to address community concerns and promote democratic participation throughout the process of CRB reform.  The changes made and the time and effort devoted to the stakeholder process were a true testament to Charlotte’s perpetually progressive potential.  While we are thankful for the opportunities to instill change, we know that change does not ever signal the end.  Our motivations are not solely to serve the citizens of Mecklenburg County, but the citizens of North Carolina as a whole, and the fundamental rights of each citizen in this country to participate and seek redress in a meaningful and just way.


Citizen Review Board Q & A

September 26, 2013

Recently, Charlotte’s Citizen Review Board (CRB) has been receiving media scrutiny over its 78-0 record, having never sided with a citizen complaining of police misconduct.  As a result of this negative publicity, the Civil Rights Clinic took an in-depth look at the structural issues within the ordinance creating the CRB.  The identified issues were condensed into an email which was sent to Council-Manager Relations Committee and Task Force members to peruse before this Monday’s committee meeting where issues regarding the Citizens Review Board will be discussed.

HISTORY AND BASICS OF THE CRB

The need for civilian oversight of the Charlotte-Mecklenburg Police Department came after several officer-involved shootings during the mid-1990s.  The CRB was created in 1997 to strike a political compromise between advocates promoting more police accountability and those who believed that law enforcement officers should be regulated by an exclusively internal policy.

The CRB does not have the authority to discipline officers or dictate department policies directly.  The CRB does hear appeals from citizens dissatisfied with how the Police Chief handled complaints of police misconduct and makes recommendations to City Council and the Police Department about how to address problems of misconduct.  This puts the CRB at the forefront of citizen-police oversight in Charlotte, making it imperative that the CRB is equipped with the tools necessary to provide an effective mechanism for oversight.

THE CURRENT CRB APPEALS PROCESS

  1. Citizen files complaint either directly with the Police Department or through the Community Relations Committee.
  2. Internal Affairs investigates the complaint and submits its report to the Police Chief, who makes a disciplinary decision and notifies the citizen of his decision.
  3. If the citizen is dissatisfied with the Police Chief’s decision, he/she can file an appeal with CRB.
  4. CRB holds an initial hearing.  The citizen is often unrepresented and has no evidence other than the investigative report from Internal Affairs.
  5. If CRB finds that the citizen has proven by a preponderance of the evidence that the Police Chief abused his discretion in applying the disciplinary action in question, then the citizen receives a full evidentiary hearing.
  6. CRB holds a full evidentiary hearing.  CRB can request further investigation by Internal Affairs, but has no subpoena power (cannot compel anyone to disclose information or appear as a witness).
  7. If the citizen can again prove by a preponderance of the evidence that the Police Chief abused his discretion then CRB may recommend that disciplinary action be taken.
  8. CRB’s recommendation goes to the Police Chief, the citizen, and the City Manager.  The police chief retains the final say as to whether to follow the advice of CRB.

ISSUES FACING THE CRB AND PROPOSED AREAS OF REFORM

Issue #1:  The high evidentiary burden

Only 4 of the 78 appeals have resulted in a full hearing.  Citizens have a difficult time making it past the initial hearing because of the high procedural burden required before a full evidentiary hearing takes place.  The current ordinance requires that a citizen prove by a preponderance of the evidence that the police chief abused his discretion in the disposition of disciplinary action at the initial hearing.

Answer #1:  Replace “Preponderance of the Evidence” with “Reasonable Cause to Believe” at the Initial Hearing Stage

At the initial hearing, the CRB looks only at a summary of the Internal Affair’s investigative report and the complaint to make its initial determination.  At this stage, complainants are not afforded the opportunity to engage in discovery or present a fully developed array of evidence to support their complaint and are typically unrepresented, while the Police Department can send as many representatives as they see fit.  The imbalance of evidence presented to the Board at this stage makes the burden of “preponderance of the evidence” an unlikely one for the complainant to meet.  Lowering the burden to “reasonable cause to believe” at this initial stage in the complaint process ensures that citizens are afforded an adequate and equal opportunity to receive a full adversarial hearing on the merits of the complaint.  The standard of review at the full hearing would remain “preponderance of the evidence.”

Answer #2:  Shift Focus of both the Initial and Final Hearings from “Abuse of Discretion” to “Whether Misconduct Occurred”

The current focus of CRB’s initial and final disposition of complaints is on the disciplinary decision of the Police Chief. This standard of “abuse of discretion” prohibits the effective function of the CRB for two reasons: 1) an abuse of discretion standard is an unreasonably high standard for citizens to meet and therefore is deferential to the police, and 2) the decision by CRB should be an independent review of the merits of the complaint rather than an assessment of the Police Chief’s discretionary authority.

Issue #2:  No investigatory or subpoena power

Independent investigatory powers are vital to creating the public perception that a civilian oversight committee is neutral and independent from law enforcement.  One complainant interviewed during our research stated that she felt the Board members were not interested in making a decision against the police, that she was unsure of whether the Board was actually working with the police, and that if a citizen wants an impartial hearing they are better off “bringing in somebody from out of town.”

Answer:  Provide CRB with independent investigatory and subpoena power

The perception that CRB operates within the Police Department can be corrected by giving CRB the power to investigate independently from Internal Affairs. Investigating through the lens of the Police Department does not give the CRB a completely neutral assessment of the situation.  With independent investigative authority, members of the CRB would be empowered to conduct more thorough and impartial hearings because they would be able to access information on their own as opposed to being routed through the Police Department.

CRB’s authority should mirror that of the Civil Service Board (CSB).  CSB, which addresses appeals from police officers who do not agree with their disciplinary action, has the power to subpoena witnesses, administer oaths, and compel the production of evidence.  Without this power, the CRB has no way to compel the police officer accused of misconduct to appear at the hearing, therefore leaving the complainant with no opportunity to cross-examine.  Since both the CRB and the CSB are civilian oversight committees reviewing inter-department disciplinary action—albeit from different complainants—CRB, too, should be granted independent subpoena power to best represent the objectives of the CRB.

Issue #3:  Lack of transparency and communication between CRB and the community

There is not enough readily obtained information about the CRB.  Currently, the city’s website only consists of one short paragraph stating how many members are on the Board and the Board’s general duties.  On CPD’s website there is a Q & A that describes the general process of filing a complaint and how the appeals process with the CRB works.  Furthermore, the closed meeting minutes fail to adequately document business discussed during the closed session.

Answer #1:  Improve CRB’s transparency and communications

The city should make three changes.  (1) All information pertaining to the CRB and complaint and appeals process should be located together on a separately maintained webpage.  Information should include plain language illustrations of how the process works, expectations of what amount of detail should be included in a complaint in order to receive a full hearing, statistical and historical data about the nature, number, disposition, and final disciplinary action of complaints, and the names and occupations of all CRB members as well as the point of contact for community members.  (2) The Board should maintain sufficiently detailed records of its hearings.  (3) Annual reports that the CRB compiles should be comprehensive and readily available to the public – as well as used by the Public Safety Committee when assessing and reforming policy.

Answer #2:  Ensure adequate representation of Charlotte’s communities

Reducing the number of appointed Board members to seven, and requiring a representative from each district in Charlotte would ensure geographic representation, but other qualities such as profession, socio-economic status, and community involvement should be considered when electing members for the CRB.

Answer #3:  Require specific and thorough training of each CRB member

Sufficient legal, policy, and community sensitivity training should be required before service on the Board.  Unbiased legal training (from both prosecutors and defense attorneys) should be provided to create an open, neutral, or receptive forum for complainants.

To learn more about the Citizens Review Board, you can view the Civil Rights Clinic podcast here:  http://www.youtube.com/watch?v=C__pJa75_jg


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